Skoda Auto Volkswagen India Private Limited vs State Of Uttar Pradesh & Ors.

O.A.No.,"Name of the

applicant/applicants",Names of Respondents,Reliefs sought

509 /2015,SaloniAilawadi,"1. Union of India through its Secretary, Ministry of Heavy

Industries & Public Enterprises.

2.Ministry of Environment, Forest and Climate Change,

Through Secretary

3.Central Pollution Control Board, Through its Chairman

Volkswagen India Pvt; Ltd., Through its Managing Director

5.Skoda Auto India Private Limited, Through its Managing Director

Volkswagen Group Sales India Private Limited, Through its

Managing Director

Volkswagen AG, Through Chairman of the Board of

Management","1 . Directing

Respondents 1Â3 to

disallow the

manufacturing,

assembly and sale

of the vehicles of

Respondents 4Â6 in

India till it is

established that they

are not employing any

deceit devices or

technology;

To direct the

Respondents 1Â3 to

inspect and check

all the vehicles

manufactured and sold

in India to ensure that

no deceit devices

are used;

3.To direct respondents

4Â7 to stop production,

assembly and sale

of those vehicles; and

To direct respondents

4Â7 to rectify the

engines of vehicles

already sold in India at

their cost.

527/2015,"1. Mr. Satvinder

Singh Sodhi

2 . Mr. Vellore

Ramesh Neelakantan

Mr. Deepit Singh

4 . Sara

International Limited","1. Volkswagen India Private Limited, Maharashtra

Volkswagen Group Sales India Private Limited, Maharashtra

Volkswagen AG, Germany

Skoda Auto India Limited, Maharashtra

Skoda Auto AS, Czech Republic

Dr.Ing. h.e.F.Porsche AG, Germany

Central Pollution Control Board, Delhi.

Automotive Research Association of India, Pune

Union of India Through Ministry of Heavy Industries and

Public Enterprises, New Delhi

Government of National Capital Territory of India, Through

Delhi Pollution Control Committee, Delhi","1 . To restrain

Respondents 1Â6 from

selling any further

automobile with the

defeat device which

violated the applicable

emission norms;

2 . To direct

Respondents 106 to

disgorge all the profits

made by selling

automobiles with

cheat devices from the

year 2008; and

3 . To direct

Respondents 1Â6 to

pay damages for

restoration of

environment.

(ii) That the High Court failed to take note of the long delay on the part of the 3rd Respondent in lodging the complaint and also the fact that the,,,

VAHAN Portal of the Government shows the purchase of only 3 vehicles as against the claim of the 3rd Respondent to have purchased 7 vehicles.,,,

Let us take up the second contention first, since it is capable of being dealt with, without much ado. The second contention has two parts namely",,,

(i) that there is a long delay in lodging the complaint and (ii) that the 3rd RespondentÂcomplainant, appears to have purchased only 3 vehicles as",,,

against his claim to have purchased 7 vehicles.,,,

The question whether the 3rd RespondentÂcomplainant purchased 3 vehicles as revealed by the VAHAN Portal of the Government or 7 vehicles,,,

as claimed by him in his complaint, is a question of fact which has to be established only in the course of investigation/trial. In a petition for quashing",,,

the FIR, the Court cannot go into disputed questions of fact.",,,

The mere delay on the part of the 3rd RespondentÂcomplainant in lodging the complaint, cannot by itself be a ground to quash the FIR. The law is",,,

too well settled on this aspect to warrant any reference to precedents. Therefore, the second ground on which the petitioner seeks to quash the FIR",,,

cannot be countenanced.,,,

The first contention revolves around the pendency of the Civil Appeals arising out of the order of the NGT and the interim order passed by this,,,

Court in the Civil Appeals.,,,

As stated earlier, two original applications came to be filed before the NGT in the year 2015, alleging that the manufacturers of the vehicles in",,,

question were employing deceit devices. The filing of the original applications coincided with the issue of notice by the Automotive Research,,,

Association of India to the manufacturers. We have already indicated broadly, in paragraphs 5Â​10 above as to what transpired before the NGT.",,,

The applicants before the NGT did not seek any relief for themselves, as purchasers of vehicles. The reliefs sought by the applicants before the",,,

NGT were broad and general. This is why the NGT, by its final order dated 07.03.2019 directed only the CPCB to consider the initiation of",,,

prosecution in the light of the applicable statutory regime, while ordering the manufacturers to deposit Rs.500 crores as compensation for the damage",,,

caused to the environment.,,,

Therefore, the order of the NGT, passed on the applications filed by certain individuals not claiming as purchasers of vehicles, cannot be taken as",,,

an impediment for an individual who purchased cars from the manufacturers, to lodge a complaint, if he has actually suffered on account of any",,,

representation made by the manufacturers.,,,

The interim order passed by this Court on 06.05.2019 in Civil Appeal Nos. 4069 and 4086 of 2019, while issuing notice reads as follows:Â​",,,

“In the meantime, no coercive steps shall be taken against the appellant viz., Volkswagen India Private Limited.â€​",,,

The aforesaid interim order correlates only to the directions issued by the NGT in paragraphs 29, 30 and 32 of its order dated 07.03.2019. The",,,

direction contained in Paragraph 30 of the order of the NGT dated 07.03.2019 reads as follows:Â​,,,

“We leave it open to the CPCB to consider initiation of prosecution in the light of applicable statutory regime.â€​,,,

In paragraphs 29 and 32 of its order, the NGT directed the manufacturers to deposit compensation to the tune of Rs.500 crores within 2 months.",,,

Therefore, the interim order passed by this Court not to take any coercive steps has to be understood only in the context of the aforesaid directions",,,

of the NGT which became the subject matter of the Civil Appeals. Hence it is futile to contend that the pendency of the Civil Appeals and the interim,,,

order passed by this Court should be taken as a deterrent for anyone else to lodge a police complaint and seek an investigation.,,,

Dr. A.M. Singhvi, learned senior counsel appearing for the petitioner strenuously contended that the contents of the complaint lodged by the 3rd",,,

RespondentÂcomplainant with the Police were nothing but a reproduction of the contentions made before the NGT and that actually the substratum of,,,

the police complaint, is what is sub judice before this court. Therefore, he contends that the police cannot investigate into the same set of allegations",,,

which form the subject matter of proceedings pending adjudication before this court.,,,

But we do not think so. A little elaboration is required to show why we cannot agree with the above contention of the learned senior counsel,,,

appearing for the petitioner.,,,

Section 110(1) of the Motor Vehicles Act, 1988 empowers the Central Government to make rules, regulating the construction, equipment and",,,

maintenance of motor vehicles with respect to all or any of the matters enumerated in Clauses (a) to (p). Clause (g) of SubÂ​section (1) of Section 110,,,

relates to “the emission of smoke, visible vapour, sparks, ashes, grit, or oilâ€​.",,,

In exercise of powers conferred by Section 110(1), the Central Government issued a set of rules known as The Central Motor Vehicles Rules,",,,

1989.,,,

Rules 112 to 114 of those Rules deal in general with “smoke, vapour, spark, ashes, grit and oilâ€. Rules 115 and 116 deal specifically with",,,

“emissions of smoke, vapour†etc., from motor vehicles and “test for smoke emission level and Carbon Monoxide (CO) level for motor",,,

vehiclesâ€​. These Rules correspond to Clause (g) of SubÂ​section (1) of Section 110.,,,

Rule 126 mandates every manufacturer or importer of motor vehicles other than trailers and semiÂtrailers to submit the prototype of the vehicle,,,

manufactured or imported by him for testing by the agencies indicated therein. Rule 126A enables the testing agencies referred to in Rule 126 to,,,

conduct tests on the vehicles drawn from the production line of the manufacturer to verify whether these vehicles conform to the provisions of the,,,

Rules.,,,

In order to give effect to the mandate of the statutory prescription, the Ministry of Road Transport and Highways, issued a document bearing No.",,,

MoRTH/CMV/TAPÂ116Â116, Issue No.4, which prescribes the test method, testing equipment and other related procedure for the purpose of",,,

testing vehicles for verifying compliance with Rules 115 and 126A of the Rules for “Type Approval and Conformity of Productionâ€. The,,,

document also contains the total procedure for checking of the inÂservice vehicles for idling CO/HC for vehicles fitted with petrol/CNG/LPG,,,

Engines. This document is divided into 15 parts. PartÂXIV contains the details of standards for Tailpipe Emissions from vehicles and Test Procedures,,,

Effective for Mass Emission Standards.,,,

Clause No.2.27 of ChapterÂ​1, PartÂ​XIV of the aforesaid document defines what is called a “Defeat Deviceâ€​. It reads as follows:Â​",,,

“Defeat Device means any element of design which senses temperature, vehicle speed, engine rotational speed, transmission gear, manifold",,,

vacuum or any other parameter for the purpose of activating, modelling, delaying or deactivating the operation of any part of the emission control",,,

system, that reduces the effectiveness of the emission control system under conditions which may reasonably be expected to be encountered in",,,

normal vehicle operation and use. Such an element of design may not be considered a defeat device if,,,

The need of the device is justified in terms of protecting the engine against damage or accident and for safe operation of the vehicle, or",,,

The device does not function beyond the requirements of engine starting or,",,,

Conditions are substantially included in the Type I or Type VI test procedure.â€​,,,

The allegations in the complaint lodged by the 3rd respondent herein, are to the following effect:",,,

(i) that “at the time of purchase and taking delivery of the vehicles, the complainant got clarified from the accused persons whether the vehicles in",,,

India were also fitted with cheat devicesâ€​;,,,

(ii) that despite the clarification issued by them that they had not installed any cheat devices, in the vehicles meant to be sold in India, the cars",,,

purchased by the complainant were found to contain such defeat devices; and,,,

(iii) that therefore, the manufacturer is guilty of commission of various offences.",,,

The question whether such devices are installed in the cars purchased by the 3rd respondent herein and the question whether there was any,,,

representation in this regard to the petitioner, are all questions of fact, peculiar and particular to the 3rd respondent herein. NGT had no occasion to",,,

examine the cars purchased by the 3rd respondent herein. At this stage no one can presume whether the defence of the manufacturer to the police,,,

complaint will be purely on a question of fact or purely on a question of law or on mixed questions of fact and law. If the petitioner takes a defence,,,

that no such devices were installed in the cars purchased by the 3rd respondent or that there was no (mis)representation in this regard, it will be a pure",,,

question of fact, which cannot be gone into in a quash petition. If the petitioner takes a defence that the installation of such devices, though true, does",,,

not violate any law, then it will be a pure question of law. We may be entitled to go into this question in a quash petition, provided the petitioner comes",,,

up with a categorical admission that they had installed such devices and yet there was no violation of the law. We do not expect the petitioner to,,,

disclose their defence at this stage nor would we speculate what type of defence the petitioner would have to the prosecution.,,,

It may not be out of context to mention here that the European Union woke up way back in 2007 to the reality of car makers installing a software,,,

that manipulate exhaust emissions, depending upon whether the car ran on a test stand or on the road. After the European Commission’s Joint",,,

Research Centre found in 2011 that the levels of harmful NOx emissions far exceeded the prescribed levels, a study conducted by the International",,,

Council on Clean Transportation (ICCT) revealed similar results in the United States. In SeptemberÂ2015, allegations of installation of manipulation",,,

devices by car manufacturers emerged from the US Environmental Protection Agency and this triggered investigations in several European Union,,,

States. After claims were lodged and legal action initiated, the German Federal Motor Transport Authority appears to have given permission in JuneÂ​‐",,,

2016 for the recall of about 2 million vehicles across Europe. In the light of these developments, one of the manufacturers entered into an agreement",,,

with the US Environmental Protection Agency in DecemberÂ2016 giving certain options to the customers. These and the subsequent developments,",,,

which attained notoriety as the dieselÂgate scandal, led to the German Federal Court of Justice (BundesgerichtshofÂBGH) giving a ruling on May 25,",,,

2020 in favour of the car owners for damages.,,,

It is in the backdrop of what transpired in Europe and U.S.A., during the period from 2015 to 2019 that the action initiated by the Automotive",,,

Research Association of India in November 2015 and the proceedings that went on before the National Green Tribunal from the year 2015 to the year,,,

2019, have to be seen. All of them were part of the global outrage that actually concerned the damage caused to the environment by the emissions",,,

from the cars allegedly fitted with manipulative devices. The proceedings before the NGT were not intended to address issues relating to individuals,",,,

such as,,,

(i) whether any emissions manipulation software, called in common parlance as ‘defeat devices’ were installed in the vehicles purchased by",,,

certain individuals; and (ii) whether any representation was made to the purchasers of the cars in which such devices had been installed, about the",,,

emission efficiency level of the cars.,,,

Therefore, we are unable to agree with the contention of the learned Senior Counsel for the petitioner that the substratum of the police complaint",,,

is something that is already the subject matter of adjudication before this Court in the appeals arising out of the order of the NGT. As a matter of fact,",,,

the High Court has been fair to the petitioner, by granting protection against arrest till the filing of the report under section 173(2) of the Code. We do",,,

not think that the petitioner can ask for anything more.,,,

It is needless to point out that ever since the decision of the Privy Council in King Emperor vs. Khwaja Nazir Ahmed AIR 1945 PC 18, the law is",,,

well settled that Courts would not thwart any investigation. It is only in cases where no cognizable offence or offence of any kind is disclosed in the,,,

first information report that the Court will not permit an investigation to go on. As cautioned by this Court in State of Haryana vs. Bhajan Lal (1992),,,

Supp. (1) SCC 335, the power of quashing should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. While",,,

examining a complaint, the quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of",,,

the allegations made in the FIR or in the complaint. In S.M. Datta vs. State of Gujarat (2001) 7 SCC 659, this Court again cautioned that criminal",,,

proceedings ought not to be scuttled at the initial stage. Quashing of a complaint should rather be an exception and a rarity than an ordinary rule. In,,,

S.M. Datta (supra), this Court held that if a perusal of the first information report leads to disclosure of an offence even broadly, law courts are barred",,,

from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread",,,

over the other sphere.,,,

In view of what is stated above, the special leave petition is dismissed. There will be no order as to costs.",,,